The Supreme Court’s October 2021 term will rightly be remembered for Dobbs v. Jackson Women’s Health Organization. Dobbs is an enormous victory for the pro-life cause and the crowning achievement of the conservative legal movement — the result of decades of doctrinal development that finally led an originalist Court to divest itself of power over one of the most vexing moral issues facing our nation.

The October 2021 term also should be celebrated for three First Amendment decisions that vindicate religious liberty by definitively vanquishing the idea that the Constitution relegates religion to second-class status. These decisions — Shurtleff v. Boston, Kennedy v. Bremerton School District, and Carson v. Makin — all sounded the same theme: that the First Amendment requires government neutrality toward religion, that it prohibits the government from disfavoring religious believers and institutions and from suppressing religious conduct or speech.

While this is hardly news — this neutrality principle has become well entrenched over the past few decades — Shurtleff, Kennedy, and Carson are, like Dobbs, the result of decades of correction of doctrinal error. In these decisions, the Court finally cleared away what the Becket Fund, in its amicus brief in Shurtleff, referred to as “a shag-carpet understanding of the Establishment Clause: one that is stuck in the 1970s and has not been updated since.” Opinions reflecting the erroneous view that the First Amendment permits, and sometimes requires, religious discrimination had been eroded, amended, and ignored over the past few decades. But the Court’s failure to overturn them gave lower courts and government officials license to sanction the exclusion of religious believers and religious voices from public programs and public life. Three times this term, the Court definitively said to those who would rely on this misunderstanding of the First Amendment to justify religious discrimination, “Enough.”

In Shurtleff, the Court held that the City of Boston violated the First Amendment’s free-speech clause by denying the request of an organization, Camp Constitution, to fly a “Christian flag” in front of City Hall. Between 2005 and 2017, Boston flew dozens of flags representing private community groups, never denying an organization’s request until Camp Constitution asked. Boston pointed to the establishment clause to justify the decision, arguing that flying the flag would send a religious message. (The city harbored no such concerns about the Boston flag, which says, in Latin, “God be with us as he was with our fathers.”) The Court sensibly rejected that argument, holding that the flag-flying program was not government speech and reiterating that “when the government does not speak for itself, it may not exclude speech based upon ‘religious viewpoint.’”

The decision in Kennedy v. Bremerton School District sounded a similar theme. In Kennedy, the Court held that a school district violated the free-exercise and free-speech clauses by firing a high-school football coach for publicly praying after games. Throughout the litigation, the district, like Boston, sought refuge in the establishment clause. Specifically, it relied on the “endorsement test” — a doctrine that the Supreme Court invented to distinguish between constitutionally protected private religious expression and constitutionally prohibited government religious expression. (The endorsement test was an offshoot of the much maligned Lemon test, an ahistorical apparatus created in 1971, in Lemon v. Kurtzman, as a means of divining establishment-clause violations.) According to the endorsement test, the legality of the district’s action turned on whether a “reasonable observer” would think the district was endorsing Kennedy’s prayers by permitting them.

The endorsement test is unworkable as a legal standard. Nobody knows what the “reasonable observer” thinks, because he is not a real person. As Justice Neil Gorsuch put it in his Shurtleff concurrence, he is “an avatar” whose “default settings are lazy, uninformed about history, and not particularly inclined to legal research” and whose “default mood is irritable.” All too often, the reasonable observer proved excessively risk-averse. His irritable gaze led hapless and hostile bureaucrats to suppress religion and lower-court judges to rubber-stamp their decisions with the imprimatur of the establishment clause.

Fortunately, Kennedy makes clear that the reasonable observer is now retired. Writing for the majority, Justice Gorsuch observed, “This court long ago abandoned Lemon and its endorsement offshoot.” This revelation likely came as a surprise to judges who have continued to play the endorsement game because, as the dissenting justices complained, the Court had never explicitly jettisoned the endorsement test (or overruled Lemon). (Justice Antonin Scalia once exasperatedly complained that Lemon was “like some ghoul in a late night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried.” Hopefully, with Kennedy, Lemon finally has been entombed for good.)

Arguably the most significant religious-liberty decision of the term, Carson v. Makin also represents the culmination of decades of doctrinal development. Carson held that Maine violated the free-exercise clause by excluding “sectarian” schools from a program for private-school choice. Since 1873, Maine has given school districts without high schools the option of letting residents use public funds to attend private schools. Students could use the funds at faith-based schools until 1980, when Maine concluded that the establishment clause required it to end the practice.

In 1980, that conclusion was arguably defensible. During the second half of the last century, the Court, citing the establishment clause, frequently invalidated programs benefiting religious schools and their students. Textbooks were okay but not maps; bus transportation to schools was fine, but not field trips; publicly funded remedial tutoring could occur in school parking lots, but not in school buildings. After 1971, the constitutionality of any program was subject to the vagaries of the Lemon apparatus, which placed a thumb on the scale against any public-benefit program.

Beginning in the 1980s, the Court began to embrace the neutrality principle that now ties establishment-clause, free-exercise-clause, and free-speech-clause doctrines together in a single neat bundle — and to reject establishment-clause challenges to programs benefiting students in religious schools. Significantly, in Zelman v. Simmons-Harris (2002), the Court upheld a voucher program enabling disadvantaged children in Cleveland to attend faith-based schools. While Zelman made clear that a state could include religious schools in choice programs, it left unanswered whether states could choose to exclude them. Neutrality was a shield against establishment-clause challenges, but could it also be employed as a sword against programs that excluded religious schools?

The answer to such questions unfolded in three recent cases: In Trinity Lutheran Church of Columbia, Inc. v. Comer (2017), the Court held that Missouri unconstitutionally excluded a religious preschool from a program that provided recycled tires for playground resurfacing. In Espinoza v. Montana (2020), Montana’s supreme court was found to have violated the free-exercise clause by invalidating a private-school-choice program because it included religious schools. And finally, in Carson, the Court eliminated the final hook upon which the government might hang a discriminatory-funding hat — namely, the argument that there is a constitutionally relevant distinction between discriminating against institutions because of their religious character and discriminating against them to prevent public funds from being put to religious uses. (This question, left open in Trinity Lutheran and Espinoza, was always nonsensical; after all, “being religious” usually entails “doing religious things.”)

Carson has important implications for school-choice policy and for social-welfare policy more broadly. Indeed, it calls into question the constitutionality of hundreds of programs that enlist religious institutions to provide public services on the condition that their programming be secular. Perhaps most important, it vanquishes the idea that there is “play in the joints” between the establishment and free-exercise clauses — that is, a gap in the Constitution that permits religious discrimination.

Religious-liberty cases have come to feature prominently on the Supreme Court’s docket. In the past five years, the Court has relied on the First Amendment’s neutrality principle to invalidate Covid-19 restrictions on religious worship, to disallow the exclusion of Catholic Social Services from Philadelphia’s foster-care system, and to hold that Colorado unconstitutionally discriminated against a baker who refused to make a cake for a same-sex wedding. It has interpreted the First Amendment’s “ministerial exception” to shield from legal scrutiny many employment decisions made by religious institutions. And, outside the First Amendment context, it has broadly interpreted the protections afforded by the Religious Freedom Restoration Act and the Religious Land Use and Institutionalized Persons Act. Just this term, the Court held that the latter entitled a condemned prisoner to have his pastor present at his execution.

These legal protections are critical in an increasingly secular culture. After all, one reason the Court is deciding more religious-liberty cases is that the government keeps singling out believers for disfavored treatment. That said, recent religious-liberty decisions leave key questions unanswered. For example, the government may no longer exclude religious institutions from public-benefit programs, but what conditions may be constitutionally imposed as a condition of their participation? May a state condition participation on nondiscrimination requirements contrary to participants’ faith commitments (as Maine did after Carson)? On waiving the ministerial exception?

It also remains unclear how much the neutrality principle protects believers against hostile government actions, because religion-neutral regulations can impose substantial burdens on them. Promisingly, in the Covid cases, the Court embraced what has been called the “most favored nation” approach to neutrality, requiring that the government treat religious activities at least as favorably as similar secular activities. In City of Philadelphia v. Fulton, the Court clarified that regulations with any exceptions, including those unrelated to religion, will be subject to searching judicial review.

Even if all of these questions are answered in favor of maximal protection of religious liberty, legal rules can go only so far to protect believers against the encroachments of the regulatory state. A brief that the Notre Dame Religious Liberty Initiative filed in the Kennedy case details that, for every Coach Kennedy vindicated by the Supreme Court, there are many others, public-school students and teachers, who have been unjustly disciplined for reading the Bible at recess, coming to school wearing Ash Wednesday ashes, or offering to pray for a co-worker.

The law matters, to be sure. And decisions vindicating religious liberty — including the three this term clarifying that discrimination against religious believers and institutions is repugnant to the Constitution — undoubtedly will help guide decisions of bureaucrats and judges. But well-intentioned judges and bureaucrats will make honest mistakes, and some hostile ones will undoubtedly resist or ignore the law. (The Left’s near-hysterical reaction to Kennedy and Carson is telling.)

When asked why he kept writing opinions that the Supreme Court eventually overturned, the late federal judge Stephen Reinhardt quipped, “They can’t catch ’em all.” In our increasingly secular society, this captures the reality of believers well. Standing up for religious liberty in our courtrooms is important. But because the courts can’t (and won’t) address every religious-liberty violation, it is equally important to stand up for our first freedom in classrooms and state legislatures, on school boards and city councils — places where thousands of daily decisions are made that affect people of faith and will never be tested in a courtroom.